Akimiski Island, Nunavut, Canada
407
DISCUSSION AND DEBA
TE
DEBATE
AKIMISKI ISLAND, NUNA
VUT
NUNAVUT
VUT,, CANADA:
A TEST OF INUIT TITLE
Christine Pritchar
d, Brandy Sistili, Zachariah General
Pritchard,
Department of Environment and Resource Studies
University of Waterloo
Waterloo, Ontario
Canada, N2L 3G1
Graham S. Whitelaw
School of Environmental Studies and
School of Urban and Regional Planning
Queen’s University
Kingston, Ontario
Canada, K7L 3N6
d J. S. T
Daniel D. McCarthy and Leonar
Tsuji
Leonard
suji
Department of Environment and Resource Studies
University of Waterloo
Waterloo, Ontario
Canada, N2L 3G1
[email protected]
Abstract / Résumé
When Nunavut, Canada, was created on 1 April 1999, the islands of the
western James Bay region not within Ontario were included in this Inuitdominated territory. The Omushkegowuk Cree of Ontario, Canada, assert Aboriginal title to the western James Bay islands. In this paper, we
examined if the western James Bay islands, specifically Akimiski Island,
pass the common law test of Aboriginal title with respect to the Inuit. We
found no evidence that supports Inuit title to Akimiski Island, Nunavut.
Lorsque le Nunavut (Canada) a été créé le 1er avril 1999, les îles
occidentales de la baie James qui ne faisaient pas partie de l’Ontario
ont été incorporées au territoire dominé par les Inuits. Les Cris
Omushkegowuk de l’Ontario (Canada) revendiquent un titre ancestral
sur les îles occidentales de la baie James. Dans l’article, l’auteur examine
si les îles occidentales de la baie James, en particulier l’île Akimiski,
soutiennent le test de common law en matière de titre ancestral pour les
Inuits. Il n’a découvert aucun élément de preuve qui soutienne un titre
inuit pour l’île Akimiski du Nunavut.
The Canadian Journal of Native Studies XXX, 2(2010):407-414.
408
Pritchard / Sistili / General / Whitelaw / McCarthy / Tsuji
Intr
oduction
Introduction
On 1 April 1999, “the islands in Hudson Bay, James Bay and Ungava
Bay that [were] not within Manitoba, Ontario or Quebec” became part of
the newly created Inuit territory of Nunavut, Canada (Nunavut Act S.C.
1993, c.28, Part 1, 3(b); Figure 1). It appears as if the inclusion of the said
islands in Nunavut was based on the convenience of existing boundaries—Nunavut was created from the eastern portion of the Northwest
Territories, which included the islands in Hudson Bay, James Bay and
Ungava Bay—and not Aboriginal title. Indeed, the western James Bay
Cree claim Aboriginal title to the western James Bay islands (including
Akimiski Island) that have been part of their traditional territory since
time immemorial (Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs, 1999). The Cree assert that the western
James Bay islands were never surrendered through treaty or any other
lawful means (Proceedings of the Standing Senate Committee on Legal
and Constitutional Affairs, 1999). The Cree claim that “there is no aboriginal title or right linkage between the Inuit and Akimiski [Island]” (Proceedings of the Standing Senate Committee on Legal and Constitutional
Affairs, 1999:24).
The test for proof of Aboriginal title (Delgamuukw v. British Columbia, 1997) has evolved over time (see Denhez, 1982, and Hurley, 2000,
for reviews). Indian and Northern Affairs Canada (INAC, 1993:5-6; INAC,
2008) describe the common law test of Aboriginal title as follows:
1. The Aboriginal group is, and was, an organized society.
2. The organized society has occupied the specific territory over
which it asserts Aboriginal title since time immemorial. The traditional use and occupancy of the territory must have been sufficient to be an established fact at the time of assertion of sovereignty by European nations.
3. The occupation of the territory by the Aboriginal group was largely
to the exclusion of other organized societies.
4. The Aboriginal group can demonstrate some continuing current
use and occupancy of the land for traditional purposes.
5. The group’s Aboriginal title and rights to resource use have not
been dealt with by treaty.
6. Aboriginal title has not been eliminated by other lawful means.
In this paper, we examine whether the Inuit of Nunavut fulfill the second
and fourth criteria of the common law test of Aboriginal title with respect to Akimiski Island, Nunavut, Canada.
Akimiski Island, Nunavut, Canada
409
Methods
Study Ar
ea
Area
Prior to 1999, Akimiski Island was part of the Keewatin Region of the
Northwest Territories, Canada. The western tip of Akimiski Island is ~16
kms from the mouth of the Attawapiskat River in James Bay (NASA,
1994) and ~25 kms east of the Cree community of Attawapiskat First
Nation (Figure 1). It is the largest island in James Bay and it is approximately 336, 700 hectares (Environment Canada, 2008).
Literatur
e Review
Literature
An extensive literature review was performed to gather any written/
electronic material related to Inuit use of Akimiski (other common names
Agamiski and Atimiski; less common names Agumiski, Akamiski,
Kamanski and Viner’s) Island. Databases and web sources were originally searched in 2002 and subsequently in 2004 and 2007; databases
and web sources were last re-examined/accessed February 2009. Full
details are available from the authors, upon request.
Results and Discussion
In the Inuit Land Use and Occupancy Project (Milton Freeman Research Limited, 1976a, b, c), the authoritative record of Inuit land use
and occupancy in the Northwest Territories of Canada (based on both
written documents and Inuit oral history), there is no evidence of the
Inuit having ever used or occupied any of the islands or coastal region in
the western James Bay area of Ontario. Similarly, a search of academic
databases (written record), Inuit databases/websites (written record and
Inuit oral history), and books/documents (written record and Inuit oral
history) did not reveal evidence of Inuit land use and occupancy in the
western James Bay region. Nevertheless, Cree oral history indicates that
“a long time ago” (no specific time period was given), the Inuit did occupy islands in the western James Bay region, including Akimiski Island
(Bird, 2002: 7). Adding further, according to Cree oral history, the Cree
did force the Inuit off Akimiski Island employing guns; however, it should
be mentioned that the Cree Elder (Bird, 1999) has emphasized that he
has heard this particular story only once. The Hudson’s Bay Company
Archives show divergence from the Bird (1999) story of no written record
of Inuit use of Akimiski Island or any other islands in the western James
region or a fierce battle between Inuit and Cree over Akimiski Island,
after European contact (Lytwyn, 2002; HBCAa, 1919 – 1941; HBCAb,
1938 – 1940). As guns were used in the story (Bird, 1999)—this would
indicate post-European contact—one would expect some record to have
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Pritchard / Sistili / General / Whitelaw / McCarthy / Tsuji
survived of this fierce battle. Indeed, Lytwyn (2002) devotes a chapter
(Chapter 4. Distant Enemies: The Inuit, Chipewyan, and Iroquois) in his
book describing other conflicts and the animosity that existed between
the Omushkegowuk Cree and Inuit of the eastern and western Hudson
Bay region; however, no mention of Inuit use of Akimiski Island was found
in the Hudson’s Bay documents examined by Lytwyn (2002). Perhaps,
the Cree-Inuit battle for Akimiski Island was pre-European contact, without guns being involved.
Allowing for the fact that there is some evidence based on Cree oral
history that the Inuit have used Akimiski Island in the past, there are
some timeline issues that need to be resolved. Nevertheless, it is evident that when both the written and oral record (Inuit and Cree) are taken
as a whole, the Inuit of Nunavut do not fulfill the second and fourth
criteria of the common law test of Aboriginal title with respect to Akimiski
Island, Nunavut, Canada. Indeed, we could not verify that Inuit traditional use and occupancy of Akimiski Island was “sufficient to be an
established fact at the time of assertion of sovereignty by European nations” (INAC, 1993:5; INAC, 2008); likewise, our research does not supply evidence that Inuit “demonstrate some continuing current use and
occupancy of the land [Akimiski Island] for traditional purposes” (INAC,
1993:5; INAC, 2008). Perhaps this is the reason why the Inuit did not
assert Aboriginal title to Akimiski Island and the other islands of the
western James Bay region in the Nunavut Land Claims Agreement, as
these islands were not included in the Nunavut Settlement Area (Nunavut
Land Claims Agreement, 1993:1). Specifically, the Nunavut Settlement
Area was “based on their [Inuit] traditional and current use and occupation of the lands, waters and land-fast ice…” (Nunavut Land Claims
Agreement, 1993:1). It is somewhat puzzling that while the Inuit did not
claim Aboriginal title to the islands of the western James Bay region, the
Canadian federal government included these islands in Nunavut as all
the islands in James Bay that were not within Ontario became part of
Nunavut (Nunavut Act S.C. 1993, c.28). In closing, we agree with Senator Lorna Milne who has stated that “many of the complaints [boundary
and Aboriginal title issues] were originally with the Nunavut Act itself.
That is when they should properly have been addressed. Unfortunately,
they were not addressed at that time. You [First Nations representatives] are quite right, the [Canadian] government did not do its job” (Proceedings of the Standing Senate Committee on Legal and Constitutional
Affairs, 1999:33).
Figure
e1
Figur
Akimiski Island, Nunavut, Canada
411
Canadian provincial and territorial boundaries as of 1997 (and Akimiski Island). This map is based on
hc1999trty_e (INAC, 2007).
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Pritchard / Sistili / General / Whitelaw / McCarthy / Tsuji
Figur
e2
Figure
Akimiski Island, Nunavut, Canada
413
Refer
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Acknowledgments
We thank SSHRC for funding support.